81 Miss. 616 | Miss. | 1902
delivered the opinion of the court.
It has been held that under § 1983, code 1892, a deed of trust upon the homestead, made by the husband owning it in fee, is invalid unless it is contemporaneously joined in by the wife. Williamson, without the joinder of his wife, executed a deed of trust upon all his lands, including bis homestead, to Speed, to secure Rogers a debt due to him. Before this deed of trust was foreclosed, Williamson died, whereupon Rogers released his incumbrance upon eighty acres of it for a homestead, and induced Mrs. Williamson, without further consideration, to waive the right of homestead exemption in the west one-half of the northwest one-quarter of section 29, township 9, range 16, the land here in dispute. The attempt of Rogers to secure, and of Mrs. Williamson to make waiver of her homestead exemption in this particular parcel of land, served to fix it as a part of the homestead exemption. The conveyance of it by Williamson alone by deed of trust was invalid, and operated nothing. It conferred no right, legal or equitable, to Speed, as trustee for Rogers. It was a void act as to the homestead, and events have fixed the lands here in controversy as a part of the homestead, and hence it is in law a part of the homestead. Upon Williamson’s death, the homestead descended to his heirs, his widow and children, in equal parts. Railroad Co. v. Singleterry, 78 Miss., 772 (29 South., 754); Duncan v. Moore, 67 Miss., 136-138 (7 South., 221). The decision of the court below is not in harmony with this view of the law, and it is reversed and the case remanded.
Reversed and remanded.